An appeals court has ruled that the ACLU, Amnesty International, and other …

It’s easy to forget these days, but former President George W. Bush’s illegal warrantless surveillance program was never halted by Congress, nor by the Obama administration; it was merely legalized in a 2008 law called the FISA Amendments Act. That means the surveillance of Americans’ international phone calls and Internet use—complete with secret rooms in AT&T data centers around the country—is likely still ongoing.

On Monday, a federal appeals court reinstated a key legal challenge to that surveillance: a lawsuit filed by the ACLU and others within hours of the FISA Amendments Act (PDF) being signed into law. The lawsuit attacks the constitutionality of the legislation, which allows the government to electronically eavesdrop on Americans without a probable-cause warrant, so long as one of the parties to the communication resides outside the US, and is suspected of a link to terrorism.

The decision by the 2nd US Circuit Court of Appeals means the ACLU, and other rights groups involved in the suit, might get their day in court. “This is a really big victory,” said ACLU spokeswoman Rachel Myers. “The ruling is that you don’t have to prove you’ve been spied on to challenge an unlawful spy act.”

The "secret room" in AT&T's Folsom Street office in San Francisco is believed to be one of several Internet wiretapping facilities at AT&T offices around the country feeding data to the NSA.

Mark Klein

A lower court had ruled the ACLU, Amnesty International, Global Fund for Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation magazine, PEN American Center, Service Employees International Union, and other plaintiffs did not have standing to bring the case, because they could not demonstrate that they were subject to the eavesdropping.

The groups appealed, arguing that they often work with overseas dissidents who might be targets of the National Security Agency program. Instead of speaking with those people on the phone or via e-mails, the groups asserted that they have had to make expensive overseas trips in a bid to maintain attorney-client confidentiality. The plaintiffs, some of them journalists, also claim the 2008 legislation chills their speech, and violates their Fourth Amendment privacy rights.

Without ruling on the merits of the case, the appeals court on Monday agreed with the plaintiffs that they have ample reason to fear the surveillance program, and thus have legal standing to pursue their claim. From the ruling:

[The] plaintiffs have good reason to believe that their communications in particular, will fall within the scope of the broad surveillance that they can assume the government will conduct. The plaintiffs testify that in order to carry out their jobs they must regularly communicate by telephone and e-mail with precisely the sorts of individuals that the government will most likely seek to monitor—i.e., individuals “the US government believes or believed to be associated with terrorist organizations,” “political and human rights activists who oppose governments that are supported economically or militarily by the US government,” and “people located in geographical areas that are a special focus of the US government’s counterterrorism or diplomatic efforts.” The plaintiffs’ assessment that these individuals are likely targets of [FISA Amendments Act] surveillance is reasonable, and the government has not disputed that assertion.

The case will now return to the courtroom of US District Court Judge John G. Koeltl in New York, where, if past is prologue, the Obama administration will play its trump card: an assertion of the powerful State Secrets Privilege that lets the executive branch effectively kill lawsuits by claiming they threaten to expose national security secrets.

“State secrets could definitely come into it,” Myers said.

The courts tend to defer to such claims, but in a rare exception in 2008, a San Francisco federal judge refused to throw out a wiretapping lawsuit against AT&T under the State Secrets Privilege. The AT&T lawsuit was later killed anyway, because the same FISA Amendments Act also granted the phone companies retroactive legal immunity for their participation in the NSA program. That immunity does not apply to the government.

The FISA Amendments Act—which passed with the support of then-senator Obama—generally requires the Foreign Intelligence Surveillance Act Court to rubber stamp terror-related electronic surveillance requests. The government does not have to identify the target or facility to be monitored. It can begin surveillance a week before making the request, and the surveillance can continue during the appellate process in a rare instance of rejection by the secret FISA court.

37 Reader Comments

And privacy in this country is better than in China, Iran or Republic of Belarus how? I am so sick of our government feeding us bs about how everything they do is for our own safety. This is 1930s in Soviet Union all over again, except for millions of prisoners in Siberia. But with Julian Assange as an example. we are not that far off. And to think that our country prides itself on being a perfect example of Democratic society trying to spread this great political system to other nations. Good luck with that...

And privacy in this country is better than in China, Iran or Republic of Belarus how? I am so sick of our government feeding us bs about how everything they do is for our own safety. This is 1930s in Soviet Union all over again, except for millions of prisoners in Siberia. But with Julian Assange as an example. we are not that far off. And to think that our country prides itself on being a perfect example of Democratic society trying to spread this great political system to other nations. Good luck with that...

This is not good in any sense.

But using hyperboles comparing the US to Iran or China.

Which actively block and silence dissenters or hack through email servers only serves to weaken your own argument.

Which actively block and silence dissenters or hack through email servers only serves to weaken your own argument.

Hacking into email servers or rubber-stamping a subpoena to hack into an email server and forcing companies to install back doors is the same thing. And about blocking and silencing dissenters... What do you think they are doing to Assange?

It's the eternal catch-22. People will believe it's necessary if they can provide evidence of that, but they can't provide evidence without compromising the security of the very thing they're trying to support (allegedly).

There has to be a better middle ground, though. "Just trust us" is never something you want to hear from your government. Given that the secret oversight FISA court has to rubber stamp anything the filer believes is terrorism, they can start a week before asking, and they can continue even when the court says no, it doesn't lend any credence to that trust for which we're being asked.

That's right dmm79...how dare you use hyperboles comparing the US to Iran or China. Iran and China silence dissenters, the US tortures and kills them.

What US dissenters has the US tortured or killed?

Quote:

Hacking into email servers or rubber-stamping a subpoena to hack into an email server and forcing companies to install back doors is the same thing. And about blocking and silencing dissenters... What do you think they are doing to Assange?

Protecting classified documents is silencing dissenters now?

I could of swore it was prosecuting those who spoke against a government.

If the US was prosecuting dissenters half the commentators on Ars would gone mysteriously missing by now.

I do not have to worry about it.When I got something I want to say in an email that I do not want others to read I use the same tatics all these US government alphabet agencies(FBI,CIA,NSA,DHS) used to use before everything went computerized.Use a book cypher....unless they know what book....they will be SOL trying to read my email.

I don't get how people can think spying on its citizens in any way is a good thing. Probable cause based on substantive evidence should be the foundation on which this post of action is undertaken. It seems like they start spying on you to get the shit they need to get it approved. I'd be willing to bet that sign-off's on thin evidence is rule rather than the exception. I'm just wondering which generation will have the government mandated television and camera's installed in the house making sure I take my soma after a long shift installing the nuclear power rods into the robots that'll be policing me.

And privacy in this country is better than in China, Iran or Republic of Belarus how? I am so sick of our government feeding us bs about how everything they do is for our own safety. This is 1930s in Soviet Union all over again, except for millions of prisoners in Siberia. But with Julian Assange as an example. we are not that far off. And to think that our country prides itself on being a perfect example of Democratic society trying to spread this great political system to other nations. Good luck with that...

The only difference is that modern US doesnt care about bullshit, for example if you diss Obama or something like that.They do care if you are a threat to the system, and if so, act very quickly. Look at Assaunge. Look at all other potential whistelblowers, such as Spitzer. If you are a threat to the system, you will be dealt with very quickly.

Why does the ACLU hate The Greatest Nation On Earth? The ACLU is flying its plane of freedom into the twin towers of God-given Greatness and Might, pissing on the graves of all the soldiers who died trying to keep us safe. If the enemies don't respect freedom or the rules of engagement, why should we? The only way to defeat them is to play dirty, and sorry, that means some dirt might get on you. Of course if you're innocent you have nothing to hide so you have nothing to fear. Wiretapping conveniently separates people into the Strong and the Scared (otherwise known as liberals). Semper Fi, bitches.

Why does the ACLU hate The Greatest Nation On Earth? The ACLU is flying its plane of freedom into the twin towers of God-given Greatness and Might, pissing on the graves of all the soldiers who died trying to keep us safe. If the enemies don't respect freedom or the rules of engagement, why should we? The only way to defeat them is to play dirty, and sorry, that means some dirt might get on you. Of course if you're innocent you have nothing to hide so you have nothing to fear. Wiretapping conveniently separates people into the Strong and the Scared (otherwise known as liberals). Semper Fi, bitches.

Why does the ACLU hate The Greatest Nation On Earth? The ACLU is flying its plane of freedom into the twin towers of God-given Greatness and Might, pissing on the graves of all the soldiers who died trying to keep us safe. If the enemies don't respect freedom or the rules of engagement, why should we? The only way to defeat them is to play dirty, and sorry, that means some dirt might get on you. Of course if you're innocent you have nothing to hide so you have nothing to fear. Wiretapping conveniently separates people into the Strong and the Scared (otherwise known as liberals). Semper Fi, bitches.

So being free is based upon being less free. That makes no sense because those ideas are in direct conflict with each other. Also why do You feel the need to validate your statement by making sure everyone knows your opinions were formed based on your experiences as a marine?

So being free is based upon being less free. That makes no sense because those ideas are in direct conflict with each other. Also why do You feel the need to validate your statement by making sure everyone knows your opinions were formed based on your experiences as a marine?

Tell ya what, you liberals stay at home and let the big boys take care of business. We don't even want a "thanks", we'll settle for the prestige.

me987654 wrote:

Where in the constitution is the "state secrets" exception for the 4th amendment? My copy is apparently missing that section.

Also, the founding fathers made it quite clear that freedom should trump security in most cases

The only way the 4th Amendment can protect you is if you demand it! Shrinking the US Government would help too. Less resources for these corrupt bureaucrats and politicians to trample the US Constitution in the name of _______ (Fill in BS emergency here).

That's right dmm79...how dare you use hyperboles comparing the US to Iran or China. Iran and China silence dissenters, the US tortures and kills them.

What US dissenters has the US tortured or killed?

Quote:

Hacking into email servers or rubber-stamping a subpoena to hack into an email server and forcing companies to install back doors is the same thing. And about blocking and silencing dissenters... What do you think they are doing to Assange?

Protecting classified documents is silencing dissenters now?

I could of swore it was prosecuting those who spoke against a government.

If the US was prosecuting dissenters half the commentators on Ars would gone mysteriously missing by now.

No, we don't torture our own citizens, only Canadian or some other sovereign nation... Oh lets not forget the endless incarceration in Quantanamo...

Eventually, a government that feels its above its own laws and maintains wonton disregard for the general human rights of citizens of other countries will eventually feel justified to apply that philosophy to their own...

So being free is based upon being less free. That makes no sense because those ideas are in direct conflict with each other. Also why do You feel the need to validate your statement by making sure everyone knows your opinions were formed based on your experiences as a marine?

Tell ya what, you liberals stay at home and let the big boys take care of business. We don't even want a "thanks", we'll settle for the prestige.

me987654 wrote:

Where in the constitution is the "state secrets" exception for the 4th amendment? My copy is apparently missing that section.

Also, the founding fathers made it quite clear that freedom should trump security in most cases

So being free is based upon being less free. That makes no sense because those ideas are in direct conflict with each other. Also why do You feel the need to validate your statement by making sure everyone knows your opinions were formed based on your experiences as a marine?

Tell ya what, you liberals stay at home and let the big boys take care of business. We don't even want a "thanks", we'll settle for the prestige.

me987654 wrote:

Where in the constitution is the "state secrets" exception for the 4th amendment? My copy is apparently missing that section.

Also, the founding fathers made it quite clear that freedom should trump security in most cases

In invisible ink that only US Presidents can read.

I'm calling Poe's Law on this one.

Dang it! You beat me to it. e should have spread it out a little more. He frontloaded too much flame bait into the first post, made it too obvious. If he had split the first post into two posts, he probably would have scored at least a 5/10. As it stand, the 2/10 he got was the best he will get until he tighten up his game.

On subject, there is so much inter-continental traffic, how can they spy on all of it? They say "secret room" not "secret office complex". And that picture looks like a broom closet. Do you guys realize just how much DATA we are talking about here? As far as I understand, currently deployed technology can fit 1600Gb/s (full duplex) on two fibers. When you do that, you CAN'T siphon off the data and pass it through anything, there is just so darn much of it.

It sounds bad, but at least they are targeting it. I just think they should need a bit more oversight before doing it. Also, if we already know that they are doing it, and where they are doing it, then exactly what state secrets are we protecting? That is the part I'm afraid of. Is the state secret that they aren't limiting it to only out of country communication.

Years of socially engineering compliance is paying off. No we certainly don't execute people just for talking smack about the government. That is intentional. It provides the people who foolishly think our civil rights are not being raped a counterpoint to those who are aware of how far we have fallen. You don't think that the people in power over the decades have not looked at the failings of other governments attempts to erode the rights of their citizens. They have damn near perfected the art. They make us look better than the violently oppressive nations, they leave plenty of "evidence" that we have many more liberties than many other nations. All the while they slowly take our liberties under the guise of protecting us from some unseen ghost that has not even bothered to rear its head against us in nearly a decade. Unlike Iran, and China, they don't control us by instilling a fear of themselves. They control us by instilling a fear of some unseen enemy threat, that is only being held back from destroying everything we love by the oppressive measure they are taking.

You can lie to yourself all you want, but this nation is sliding down a slope into the same pit that Iran, China, N. Korea live. A pit where liberty is scarce and oppression is a way of life. It is only a matter of time.

Hacking into email servers or rubber-stamping a subpoena to hack into an email server and forcing companies to install back doors is the same thing. And about blocking and silencing dissenters... What do you think they are doing to Assange?

Is Assange a US citizen now? Otherwise I can't see how he could be a "dissenter" in the eyes of the US government.

The surveillance is only of suspected terrorists (or, at least it's supposed to be..) Why would these people be communicating with said suspected terrorists?

As well, the wiretap needs to be signed off by a judge, so there are (ideally and possibly naively at least) checks and balances in place..

The key part there is "supposed to be." Unfortunately, when Agent Smith over at NSA, or FBI, can arbitrarily select whose communications he's monitoring, he may very well start listening to John and Jane instead. The reality is that it's way too much power to trust the government with.

The plaintiffs, some of them journalists, also claim the 2008 legislation chills their speech, and violates their Fourth Amendment privacy rights.

and

Quote:

The lawsuit attacks the constitutionality of the legislation, which allows the government to electronically eavesdrop on Americans without a probable-cause warrant, so long as one of the parties to the communication resides outside the US, and is suspected of a link to terrorism.

This is what I don't get. I understand that one of the parties is not American and therefore not subject to the Fourth Amendment rights, but the other party being surveiled is American and therefore is protected by the Fourth Amendment. So this means that any warrantless wiretapping or eavesdropping should be illegal regardless of the foreign party.

It really upsets me that our government has sold out our rights under the guise of terrorism. Nowhere in the Constitution does it say "life, liberty, and the pursuit of happiness--unless you're a terrorist". Our rights exist outside of any accusations and accusations have to have some form of proof to be used to strip us of our rights. This was what used to make America different than other, oppressive, countries. So much for that.

While I detest the warrantless wiretapping, the claim from ACLU et al. that they need to travel to foreign countries to communicate rings false. They could easily encrypt their emails which would seemingly prevent any warrantless viewing of the mail. Voice communication is certainly a bit more problematic, I'll admit. Depending on the infrastructure of the receiver, they could use something like Skype to encrypt their voice communication as well.

Ya but depending on how deep the surveillance goes, encrypting your messages may throw up red flags just because they are encrypted. They may not be able to decrypt them, but it may ensure they keep a closer eye on you.

The only way the 4th Amendment can protect you is if you demand it! Shrinking the US Government would help too. Less resources for these corrupt bureaucrats and politicians to trample the US Constitution in the name of _______ (Fill in BS emergency here).

I think you nailed it. If I might paraphrase: "Its the big government, stupid."

Why does the ACLU hate The Greatest Nation On Earth? The ACLU is flying its plane of freedom into the twin towers of God-given Greatness and Might, pissing on the graves of all the soldiers who died trying to keep us safe. If the enemies don't respect freedom or the rules of engagement, why should we? The only way to defeat them is to play dirty, and sorry, that means some dirt might get on you. Of course if you're innocent you have nothing to hide so you have nothing to fear. Wiretapping conveniently separates people into the Strong and the Scared (otherwise known as liberals). Semper Fi, bitches.

I completely disagree with you. If we act as you propose, we lose everything we've fought for and everything worth fighting for. The ACLU is the most important safeguard we have to insure liberty, personal privacy and free speech, Yes, even the speech of unpopular persons and causes, like your above rant.

And if you think America's ascendancy to power is "God-given" and not completely explainable by history, you need to get out more. Perhaps you could start by reading Jared Diamond's Guns, Germs and Steel.

PS: I'm a six year military vet, so you cannot bolster your "argument" by wrapping it in the flag.

Unfortunately, that's not the case. A soldier's #1 job is to do what he is told. Invading and occupying Iraq has nothing to do with the safety of Americans. Bombing Libya has nothing to do with the safety of Americans. Invading and occupying Afghanistan DOES have to do with the safety of Americans, since they harbored the 9/11 terrorists. Soldiers are completely at the beck and call of the political leadership.

So thank you soldiers for volunteering. Some percentage of your missions are for the protection of your fellow citizens. Others are not. Hopefully citizens will remember to protest the political leaders bad decisions and not take it out on their weapons, the soldiers. Hopefully the soldiers understand all of this as well.

Is there anything more pernicious in a representative democracy than the misuse of the "State's Secrets" defense? It's found nowhere in the Constitution and when it is trotted out in court it is virtually certain that the government is doing so to cover illegalities and embarrassments. Spreading fear in defense of curtailing freedoms could be considered a form of terrorism itself. When did the US conclude that being really safe is preferable to being really free? In two centuries we have gone from "Give me liberty or give me death" to "I have nothing to hide and you shouldn't care unless you are hiding something". Dwight Eisenhower said it best: "If you want total security, go to prison. There you're fed, clothed, given medical care and so on. The only thing lacking... is freedom."